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Reese v. Bezio

State of New York Supreme Court, Appellate Division Third Judicial Department


July 29, 2010

IN THE MATTER OF GARLAND REESE, PETITIONER,
v.
NORMAN R. BEZIO, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: June 9, 2010

Before: Mercure, J.P., Peters, Lahtinen, Malone Jr. and Stein, JJ.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

After his urine twice tested positive for the presence of marihuana, petitioner, a prison inmate, was charged in a misbehavior report with the use of a controlled substance. Petitioner was found guilty following a tier III disciplinary hearing. The determination of guilt was affirmed on administrative review with a reduced penalty, after which petitioner commenced this CPLR article 78 proceeding.

To the extent petitioner argues that there was a lack of substantial evidence, we find that the misbehavior report, the positive test results and the testimony of the correction officer who performed the tests support the determination of guilt (see Matter of Duffy v Fischer, 69 AD3d 1073, 1074 [2010]; Matter of Frye v Commissioner of Correctional Servs., 69 AD3d 1074, 1074 [2010]).

Turning to petitioner's procedural arguments, the record demonstrates that the hearing was held in a timely fashion, with the proper extensions granted and the proceedings completed within those timeframes (see Matter of Davis v Prack, 63 AD3d 1457, 1458 [2009]; Matter of Harrison v Votraw, 56 AD3d 868 [2008]). Petitioner's claim that he was improperly denied the right to call certain witnesses is unpreserved for our review because he failed to object at the hearing and, in fact, stated affirmatively that he had no more witnesses or testimony to present (see Matter of Terrence v Fischer, 64 AD3d 1110, 1111 [2009]; Matter of Perretti v Fischer, 58 AD3d 999, 1002 [2009], lv denied 12 NY3d 709 [2009]). We find that the intermittent gaps in the hearing transcript did not render it so deficient as to preclude meaningful judicial review (see Matter of Abreu v Bezio, 71 AD3d 1341, 1342 [2010]). Finally, a review of the record demonstrates no bias on the part of the Hearing Officer and that the determination was a result of the evidence presented at the hearing (see Matter of Bermudez v Fischer, 71 AD3d 1361, 1361-1362 [2010]).

We have examined petitioner's remaining contentions and find them to be without merit.

Mercure, J.P., Peters, Lahtinen, Malone Jr. and Stein, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

20100729

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